Pacific Fleet Information Paper
An Outline of Key Points to Help Explain the Proceedings
(Feb. 17, 2001)
A court of inquiry is an administrative fact-finding body that consists of three or more officers and has an appointed legal advisor for the court.
It is not a court in the normal sense of the term, but is a formal board of investigation charged with examining and inquiring into an incident and, when directed by the convening authority, making opinions and recommendations about the incident.
Testimony is given under oath and all open proceedings, except the arguments of counsel, are recorded verbatim. The board possesses the power to order military witnesses and subpoena civilian witnesses to testify at the hearing.
- Are based on a long military tradition, from the 1786 Articles of War.
- The authority for a Court of Inquiry is now based on Article 135, Uniform Code of Military Justice [UCMJ]. An officer authorized to convene a General Court-Martial can convene a Court of Inquiry.
- Can be used as a substitute for an Article 32, UCMJ investigation [which would be required before any case could be referred to a General Court-Martial].
- Can be used to investigate "major incidents", which in layman's terms can be described as covering the most serious incidents.
- Generally make findings of fact, opinions, and recommendations.
- Will be public, unless there is good cause to close all or portions of the inquiry.
- The President may clear the Court at any time so that the members can conduct consultations or deliberations.
- Military witnesses may be required to appear; civilian witnesses may be subpoenaed to compel their presence.
- The Court must have at least three commissioned officers as members, and all members are normally senior to any "parties" whose conduct is the subject of the inquiry. The senior member is the President of the Court. All members will be present for all sessions of the Court.
- The President controls the proceedings as well as the personnel assigned to support the Court.
- Technical advisors may be appointed to assist the Court, but an advisor is not a voting member of the Court.
- Similarly, the JAG Manual [Sec 0211(h)] allows for the participation by non-parties who "have an interest in the subject under inquiry"; this permits the participation of a foreign military officer, for example. Such an individual may also serve as a technical advisor.
- The officer who convenes the Court appoints a legal advisor to the Court. In some cases, the Court may have more than one legal advisor appointed to assist it. Like the technical advisor, he/she does not participate in the deliberations or the voting of the Court. Counsel to the Court must be certified by the Judge Advocate General and is normally a military attorney from the same branch of service as the officer who convened the court.
- Counsel to the Court is under the direct supervision of the President, and presents evidence and does the direct examination of witnesses except those "called" by a party. His role is to disclose all facts, in an impartial manner, and to assist the Court in its inquiry. He/She is not an advocate or prosecutor.
- A Court Reporter, whose job is to record the proceedings of the Court, is appointed to ensure a verbatim record of the proceedings is made.
- The Court may also have administrative support, evidence custodians and Security personnel to assist it.
- The members, counsels, court reporter, and any interpreters shall take an oath to faithfully perform their duties.
- All witnesses will testify under oath.
- Any person whose conduct is the subject of the Inquiry shall be designated a "party." Parties may be designated before or during the proceedings. Only a party is entitled to be represented by counsel.
- A party has the right to due notice of the proceedings, to be present and to be represented by counsel, to cross-examine witnesses and to introduce evidence.
- A party has the right to request the production of evidence.
- A party may object to evidence, and the President will note the objection for the record and/or rule on the objection. Again, this inquiry is not a court martial and the majority of the Military Rules of Evidence do not apply. At a court martial, the Rules of Evidence would apply.
- Of note, evidence resulting from privileged communications, classified information, or violations of one's right against self-incrimination is objectionable, and inadmissible, at a Court of Inquiry.
- A party may have a civilian counsel, at his/her own expense; military counsel is provided free of charge to each party. A party may request the services of a specific military counsel and, if reasonably available, that counsel may be provided to represent the party
- A party may, but is not required to, testify; parties retain their rights against self-incrimination.
- A party may submit a voluntary, unsworn statement for the Court to consider. This is a way to provide evidence for the Court's consideration instead of by testimony.
- A party may "challenge" any member, but any challenge must be based on a reasonable "cause" [e-g, bias, partiality, prejudice]. Any challenged member may be questioned as to the basis for the challenge, and his responses may be sworn or unsworn. The other members will vote on the challenge, without the challenged member being present: a split or majority vote will disqualify the member. A new one may be appointed [and is required, if less than 3 officers remain].
- A Court of Inquiry will proceed much like a judicial proceeding: it will assemble, at a time and place chosen by the President, and the appropriate personnel will be sworn.
- Witnesses and evidence are normally presented in this order: counsel for the Court; party[ies]; any rebuttal evidence from counsel for the Court; and any evidence requested by the Court members.
- Witnesses will be questioned, then cross-examined; if necessary, further direct and cross-examination may follow, then questioning by the Court members.
- Witnesses will be allowed to add anything they believe is relevant that was not brought out by earlier questions, and further questioning may be allowed based on what a witness has added.
- Given a 3-member Court, with a foreign military representative, and questioning by attorneys for the 3 designated parties, getting the testimony of witnesses could be a time-consuming process.
- Requests to visit the scene may be allowed by the President if he deems it practicable.
- Witnesses will normally be excluded from the hearing except when testifying, in order to avoid any witness' testimony being influenced by having heard another's testimony.
- The President may grant recesses, continuances, and adjourn the Court; if an adjournment is for more than 3 days, the President shall inform the convening authority.
- All parties will be allowed to make closing arguments.
- After all the evidence, statements, and arguments have been received, the Court shall declare the inquiry "closed."
- The members will deliberate privately on what they've received, follow the instructions in the appointing order, and produce a report.
- The record will be authenticated by counsel and the President, and should be signed by all members.
- Counsel for the Court is not allowed to take part in any deliberations, but may administratively assist the Court in preparing its final report.
- The report of findings of fact, opinions, and recommendations become a part of the record of the Court. If any are not unanimous, dissenting views become part of the record as a "minority report," which gives the reason for the disagreement.
- No person officially connected with the inquiry shall disclose the findings, opinions, or recommendations of the court [or of the individual members] without the prior approval of the convening authority.
- Except for delivery of the report to the convening authority and any subsequent reviewer, no copies of the report of proceedings may be provided to any person, including parties, without the approval of the Secretary of the Navy and the Office of the Judge Advocate General of the Navy.
- Upon receipt of the Court's report, the convening authority will decide what, if any, further action is appropriate.
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